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10
Through Legal Eyes
touchline
Who is Watching the
Children
?
Non-delegable duty of care
In this issue, Touchline’s legal experts
from Australia, Canada and the United
Kingdom examine the ramifications of a
recent decision by the Queensland Court
of Appeal concerning non-delegable duty
of care in their respective countries.
Now more than ever, supervision is imperative
The Queensland Court of Appeal has sent out a strong warning
to sporting organisations providing recreational activities for
children. In the recent case of
Fitzgerald v Hill
[2008] QCA 283
the Court imposed a non-delegable duty of care on the operator
of a taekwondo school in favour of his students. The decision has
significant implications for sporting organisations and clubs that
provide recreational activities for children.
Non-delegable Duty of Care: General Principles
A non-delegable duty of care is a personal duty to ensure that
reasonable care is taken for the safety of persons who are covered
by the duty. The duty cannot be delegated to a competent
independent party. A non-delegable duty of care departs from
basic principles of liability in negligence by substituting a greater
duty in place of the duty to take reasonable care.
Relationships in which a non-delegable duty of care have been
found are characterised by a special dependence and vulnerability
on the part of the person to whom the duty is owed. Traditional
categories of relationships where a non-delegable duty of care
exists include employer/employee, hospital/patient, and school/
pupil.
Australian Perspective
Fitzgerald v. Hill
Facts
An eight-year-old boy (Fitzgerald) attended a class at a taekwondo
school operated by Ivanov. The instructor took the class for a run
along the road at dusk. Fitzgerald was struck by a car driven by
Hill and suffered severe injuries. The trial judge found that the
operator of the taekwondo school assumed personal responsibility
for the conduct of the class and owed a non-delegable duty of
care to the students, including Fitzgerald.
Court of Appeal
On appeal the Queensland Court of Appeal upheld the trial
judge’s finding. It was found that a non-delegable duty of care
was evident from Ivanov’s high degree of control and Fitzgerald’s
vulnerability. The Court emphasised the importance of ensuring
that children involved in self-improvement and leisure activities
are not treated negligently. The plaintiff’s age was clearly an
important factor.
Expanding the categories of non-delegable duties
In the recent case of
Leichhardt Municipal Council v
Montgomery
(2007) 233 ALR 200, the High Court stated that
relationships that give rise to non-delegable duties of care should
not be expanded. The Court in
Fitzgerald
extended the principles
of non-delegable duty of care to recreational and sporting
organisations whose focus is on providing leisure activities for
children. This will have implications for community and leisure
organisations who have previously delegated the responsibility for
children under their care to coaches or other supervisors.
A non-delegable duty of care is burdensome, especially when
you take into account the foibles and unpredictable behaviour
of children. Now more than ever, sporting and recreational
organisations will have to ensure that supervision is exercised
over the activities of children who are vulnerable to injury in the
course of their activities.
David Randazzo is a Senior Associate at the law firm DLA
Phillips Fox in Melbourne.